Bipartisan Group of Senators Pose Another Challenge to Use of Noncompete Agreements

By now you are no doubt aware that last month the Federal Trade Commission proposed a new rule prohibiting employers from enforcing noncompete agreements against their workers. The FTC has received over 5,300 comments on the proposed rule in the past three weeks. On Wednesday a bipartisan group of U.S. Senators reintroduced the Workforce Mobility Act, which would also limit the use of non-compete agreements. 

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Employers Should Start Using New EEOC Poster Now

I have written about this in a prior update, but for those who may have missed it, you should start using the new EEOC “Know Your Rights” poster now. (You can access the EEOC web page and poster here )  

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The OFCCP May Be Planning to Release Your 2016-2020 EEO-1 Reports. What Can You Do?

On August 19, the OFCCP published a notice advising employers that it is planning to produce confidential information that is protected from disclosure under a statutory exemption (Type 2 EEO-1 report data) in response to a Freedom of Information Act (FOIA) request by Mr. Will Evans of the Center for Investigative Reporting. Employers have until September 19, 2022, to file written objections to this disclosure. 

The FOIA request technically covers only federal contractors and their first-tier subcontractors. However, it is not unusual for employers to mistakenly identify themselves as a federal contractor or subcontractor when filling out section 3 of the report, or for the OFCCP to list non-federal contractors as federal contractors on its Corporate Scheduling announcements. It looks like the OFCCP is preparing to produce the confidential Reports of well over 15,000 employers. Employers should not assume that their data will not be produced simply because they are not federal contractors or subcontractors. 

If you do not want your confidential EEO-1 Report data produced, there are a couple of steps that you can take. First, you can contact the OFCCP and ask if your information is among the list that the OFCCP intends to produce, and if so, request a copy of the data. Second, you can file an objection to the production of your data in response to this FOIA request. Written objections and requests for information should be submitted to the OFCCP via U.S. Mail or email and must be received by the OFCCP by September 19, 2022. 

For further information, you can contact Candice Spalding, Deputy Director, Division of Management and Administrative Programs, Office of Federal Contract Compliance Programs, 200 Constitution Avenue NW, Room C-3325, Washington, DC 20210. Telephone: 1-855-680-0971 (voice) or 1-877 -889-5627 (TTY).

As always, don’t hesitate to contact me directly if you have any questions. Jay Stovall (

Federal Appeals Court Affirms NLRB Decision Reinstating Employee Who Defaced Company Overtime Sign-Up Sheet by Writing “Whore Board”

What seemed to be a straightforward termination went sideways for Constellium Rolled Products, a maker of extruded aluminum products with over 13,000 employees worldwide. In 2020 Constellium implemented a new policy by which it started to discipline employees who voluntarily signed up to work an overtime shift and then failed to show up. (Sounds reasonable to me.) The company’s unionized employees preferred the company’s prior overtime system by which the company solicited employees individually about working overtime and did not discipline those who failed to show up.

The union and several employees filed grievances under the company’s collective bargaining agreement and unfair labor practice charges with the NLRB over the change. Some employees began to refer to the sign-up sheet as the “whore board.” One employee, Mr. Williams, went so far as to write “whore board” on the top of each sign-up sheet, which meant that employees who wanted to sign up for overtime had to sign a sheet of paper that identified them as “whores.”  Constellium suspended and then terminated Mr. Williams over the incident. 

Continue reading Federal Appeals Court Affirms NLRB Decision Reinstating Employee Who Defaced Company Overtime Sign-Up Sheet by Writing “Whore Board”

Public Employer Medical Marijuana Law

On August 1, 2022, Act No. 651, the new Public Employer Medical Marijuana Law, went into effect and provides more protections to employees and applicants with a proper recommendation for marijuana, but also creates more questions for public employers across the State. There are a number of issues that are not addressed in the law and will be left to Louisiana courts to resolve, including what employers are actually covered, how this law will impact worker’s compensation insurance agreements, how vicarious liability for injuries caused to others by protected employees will proceed, and the parameters around which covered employers can test employees and applicants and what results can come from any positive tests.

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Employer Ordered to Pay Employee Five Million Dollars Because

Last Thursday a jury in Dallas, Texas awarded a former flight attendant Five Million Dollars against her former employer and union after they colluded to fire her in violation of Title VII because she shared her pro-life beliefs with her co-workers. Specifically, the plaintiff, Ms. Carter, alleged that:

  1. her religious beliefs require her to share with others her pro-life stance on abortion;
  2. the union complained to her employer about her pro-life posts on Facebook;
  3. the union violated Title VII by trying to get her fired over her religious views; and
  4. the employer, Southwest Airlines, violated Title VII when it did fire her because of her pro-life social media content.
Continue reading “Employer Ordered to Pay Employee Five Million Dollars Because”

EEOC Issues COVID-19 Update!

In July 2022, the EEOC issued another COVID-19 update. (You can find it here.) Although the update is not groundbreaking, the highlights are worth noting:

  • This is probably the most notable change contained in the update. 
    • Prior EEOC Guidance indicated that mandatory workplace COVID-19 testing always met the ADA “job related and consistent with business necessity” standard. The new Guidance changes that: now, an employer can require a COVID-19 viral test when deciding whether an employee or applicant is safe to be in the workplace only if the employer can show that the viral test is “job-related and consistent with business necessity.” 
    • Generally, viral test requirements will meet this standard if they are consistent with current guidance from the CDC, the Food and Drug Administration, or “state and local public health authorities.” Other justifications for requiring a viral test include the level of community transmission, the vaccination status of employees, the accuracy and speed of processing for different types of COVID-19 viral tests, the degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations, the ease of transmissibility of the current variant(s), the possible severity of illness from the current variant, what types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals), and the potential impact on operations if an employee enters the workplace with COVID-19.
    • As with most issues we discuss, it is going to be important that you document the process of requiring the viral test and the information (CDC, FDA, etc..) that you relied upon in doing so.
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You Need to Know This If You Have Commissioned Salespeople in Texas

Almost all employers who use commissioned salespeople have an understanding with them regarding how commissions are earned; some even put this agreement into writing. Unfortunately, many do not state specifically when employees stop earning commissions. This can lead to expensive, unintended consequences in Texas.

Last month, the Texas Supreme Court in Perthuis v. Baylor Miraca Genetics Lab’ys, LLC, breathed new life into an old doctrine (the “procuring-cause” doctrine) that originally dealt with real estate broker commission agreements. In Perthuis, the court held that an at-will employee who receives a commission as part of his compensation continues to earn commissions on sales consummated after the employee’s termination if:   

  1. The employee was the “procuring cause” of the sales, and 
  2. The commission agreement between the employer and employee “is silent about any exceptions.”
Continue reading “You Need to Know This If You Have Commissioned Salespeople in Texas”

2022 Legislative Update

As you are no doubt aware, the 2022 Regular Legislative Session ended on Monday, June 6. Some new laws relevant to the HR professional made it out of the session, as did some interesting, but not-so-relevant ones. Outlined below are some of the most significant.

Bills of Interest to HR

House Bill 54. (This Bill will become law if not vetoed by 6/26.) This law will prohibit any governmental entity or public educational institution from seeking proof of vaccination status from anyone seeking entry or discriminating against an employee for refusing to adhere to a COVID vaccination requirement.

House Bill 988. (This Bill will become law if not vetoed by 6/23.) This law will prohibit a public employer from discriminating against any employee or applicant based solely on a positive drug test for marijuana if the employee or applicant has been diagnosed as suffering from a debilitating medical condition and a licensed physician has recommended marijuana for therapeutic use.

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Do You Hear That Sound? It’s The Paid Leave Train, And It’s Heading Straight for You

Most of us are very familiar with the Family and Medical Leave Act, which requires unpaid leave, a continuation of benefits, and reinstatement of employees who take off of work for various health and military-leave related reasons. 

Fortunately, the FMLA only applies to employers with fifty or more employees, and we currently have no comparable state law that would apply to smaller employers.  

That is probably going to change in the near future. 

This week, Maryland became the tenth state to recently pass a law requiring private employers to provide paid family and medical leave. Similar bills are currently pending in at least twenty-five other states, including Louisiana. 

Louisiana currently has no less than two Bills pending in the House and Senate that would require private employers to provide paid leave for sickness, and family and parental leave, and one that would require governmental employers to provide similar paid leave benefits. The Bills would variously apply to employers with at least five or twenty employees, and one would apply to state employees. (Senate Bill 289, House Bill 1003, and House Bill 945 respectively). Although employers do not need to take any concrete action in response to any of these Bills at this time, it would be a good idea to keep them on your radar. If any of these become law, they will present significant changes.